Novell-Microsoft partnership faces GPL hurdle

Patent licence deal believed to be incompatible with forthcomging GPL3.

The patent cross licensing deal that Microsoft and Novell unveiled last Thursday will be incompatible with the GPL3 licence and is likely to be incompatible with the current GPL2 licence, alleged Eben Moglen, a law professor and open source activist.

Section seven of the current general public licence (GPL2) prohibits people or corporations from distributing the GPL code if they have entered into any agreements that contradict the conditions of the licence.

"If you cannot distribute so as to satisfy simultaneously your obligations under this Licence and any other pertinent obligations, then as a consequence you may not distribute the Program at all," the licence states.

The provision for instance prevents Novell from making it mandatory for users to pay a license fee for its Linux distribution if Microsoft would have required that as part of the patent agreement.

Microsoft and Novell on Thursday unveiled a broad ranging partnership around Novell's Suse Linux distribution. Among things, the two companies have signed a patent cross license deal that will protect users and developers of Suse against patent claims from Microsoft.

The two also vowed to work on interoperabiltiy between the two operating systems and Microsoft will distribute up to 70,000 copies of Suse to its customers through a coupon program.

Moglen in an interview with vnunet.com called upon Novell to explain in detail how it plans to honour the GPL while satisfying the terms of its licence agreement with Microsoft.

"They need to show affirmatively that the terms of their arrangement with Microsoft do not impact the freedoms that they must be able to pass along under the GPL," said Moglen.

Novell hasn’t yes disclosed the exact details of its legal agreement with Microsoft. But company spokesperson Bruce Lowry claimed that the partnership doesn't violate the GPL.

"The patent agreement signed by Novell and Microsoft was designed with the principles and obligations of the GPL in mind," Lowry told vnunet.com. He added that the company is working on a document that explains the deal more in detail and will provide legal background.

But even if the deal is allowed by the current GPL, it won't meet the requirements of the forthcoming GPL3, of which Moglen is one of the authors. The licence is slated for release in the coming months. Although the Linux kernel will stay under the GPL2, most of today's GPL applications are expected to switch over to GPL3, including many parts that ship as part of Novell's Suse Linux distribution.

The upcoming revision of the licence explicitly prohibits distributors from asserting any patent claims against open source developers. The Microsoft-Novell agreement meanwhile limits its patent pledge to non-commercial developers and developers contributing to the OpenSuse.org project.

"Maybe it will turn out that [Novell and Microsoft] have cleared the barrier by a millimeter. But then they will not clear GPL3 by a millimeter," said Moglen.

Numerous people in the open source community applauded the partnership because its eliminated the threat of Microsoft suing open source developers and vendors for patent infringement claims.

Stuart Cohen, chief executive of the Open Source Development Labs (OSDL) last week told vnunet.com that: "Microsoft is now saying that it is OK to run Linux.".

Dave Dargo, chief technology officer for Ingres, on his blog wrote that the deal "will accelerate the adoption and, therefore, the success of open-source within the commercial enterprises".

Moglen however charged that the deal will make thing worse instead of better. By paying Microsoft a license fee for each copy of Suse Linux that is shipped, Novell is providing the firm with additional revenues. But this will extent the life of a failed business model that is based on proprietary code.

"This is giving Microsoft a new lease on life," Moglen said. "Microsoft is about to suffer a company ending defeat."

"The correct answer to Microsoft is to tell them: 'Your patents are worthless. Go away.'"

Moglen also said that Microsoft's forthcoming Windows Vista operating system will fail in the market place and charged that Microsoft's Office software is "dying".

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